EEL News Service Issue 2011/1 of 2 February 2011

ECJ Case Law

Precautionary ban on plant protection substance

In a preliminary ruling referred to the ECJ by the Tribunale amministrativo regionale del Lazio (Italy), the Court ruled on the validity of Commission Directive 2006/134/EC amending Council Directive 91/414/EEC concerning the placing of plant protection products on the market to include fenarimol as an active substance.

A plant protection product must be listed as an active substance in Annex I of Directive 91/414 and satisfy the conditions set out therein before placement on the market can be authorized by the Member States. The Commission Directive established restrictions on the use of fenarimol during the time that it was included in Annex I. The complainant argued that the severity of the restrictions were not justified by the scientific studies carried out during the assessment procedure. The referring court added that the scientific assessment had resulted in positive conclusions and that the Commission had initially proposed to include the substance in Annex I without restrictions.

The Court found that the restriction on the use of fenarimol was valid and in accordance with the principle of legal certainty, the precautionary principle and the principle of proportionality. The Court gave weight in its decision to remaining scientific uncertainty regarding potential endocrine disrupting properties of fenarimol.

National Emission Ceilings standing in the way of IPPC permits (AG Opinion)

A request for a preliminary ruling was referred to the European Court of Justice by the Dutch Council of State in a case that concerned the issuance of permits for three coal power plants. The permits were claimed not to be in accordance with Directive 2008/1/EC concerning Integrated Pollution Prevention and Control (IPPC) and Directive 2001/81/EC on National Emission Ceilings for certain atmospheric pollutants (NEC). The Netherlands itself indicated in 2009 that it expected to exceed the emission ceilings for Sulfur Dioxide and Nitrogen oxides set out in the NEC Directive, although by now it claims to have tackled these problems. The main question to the ECJ is whether or not a Member State can issue permits for new projects if these are likely to result in extra emissions and non-compliance of that Member State with its emission ceilings.

The IPPC Directive says that permits cannot be issued when environmental quality standards are exceeded. Advocate General Kokott is of the opinion that emission ceilings cannot be equaled to environmental quality standards. Nevertheless, she concludes that the IPPC and NEC Directives can stand in the way of issuing permits when emission ceilings would be exceeded, because exceeding these ceilings can make it very hard or impossible to meet the quality standards. She is also of the opinion that Art. 4 of the IPPC Directive has direct effect and can be relied on by private persons in cases where an IPPC permit would lead to (the threat of) exceeding emission ceilings.

It now remains to be seen if the ECJ will follow the reasoning used in this Opinion, or whether a different interpretation will be given, for instance by putting stronger emphasis on the requirement to adopt national programmes (Art. 6 NEC Directive), in line with the Janecek Case (C-237/07).

For news on the Commission’s plan not to review the NEC Directive, see below.

This reference for a preliminary ruling was made in proceedings brought by several environmental organizations in the Netherlands who sought the annulment of a decision of the Dutch Board for the Authorization of Plant Protection Products and Biocides (‘the CTB’). The CTB refused to disclose certain studies and reports concerning residues and effectiveness of the substance propamocarb in or on lettuce. The Court decided that the information at issue was ‘environmental information’ in the sense of Article 2 of Directive 2003/4/EC on public access to environmental information. Such information must be made available to the public upon request.

Another aspect of the case has broader implications for EU law. The moment of decision of the authority is the moment whereupon the application of a Directive crystallizes, so ruled the Court. The request for access to environmental information in the case was made before the transition period of the previous Directive (90/313) came to an end but the decision by the authorities was taken after the transition period of Directive 2003/4 had expired. The Court found that in that case the latter directive applied which was in effect during the time of decision.

This preliminary ruling concerned a request by the Ville de Lyon to receive trading data relating to the names of holders of accounts for greenhouse gas emission allowances. The Court found that such trading data is not “environmental information” in the sense of the implementation of the Aarhus Convention within EU law and specifically Directive 2003/4 on public access to environmental information. The trading data is therefore not subject to a full right of access and a related obligation to disclose. The Court determined that the data comes exclusively under the specific rules governing public reporting and confidentiality which are contained in Directive 2003/87 and Regulation No 2216/2004. Consequently, access to such data can be more rigorously restricted and is not to be disclosed before a period of five years has elapsed following the year of completion of transactions relating to transfers of emission allowances.

European Environmental Law after Lisbon, an Introduction; Bulgarian version

A Bulgarian language version of this updated dossier has been added to the website. The dossier includes the changes that the Lisbon Treaty brought about in the field of European environmental law. The introduction also describes the changes that previous Treaties (notably the Single European Act, Maastricht, Amsterdam and Nice) brought about. Also, some information on EU law regarding the free movement of goods and protection of the environment, and on environmental case law is provided in this introduction. More language versions will follow in the near future.

Hungary started the rotating EU Presidency on 1 January 2011. Top environmental priorities will be climate negotiations for the COP 17 in Durban and implementation of the climate/energy package, as well as biodiversity, sustainable management of materials and GMOs according to the Hungarian Presidency agenda.

The European Environmental Bureau (EEB) determined as well challenges in terms of the environment for the upcoming EU presidency which consist of ensuring a strong energy savings agenda and a truly green and sustainable reformed Common Agricultural Policy (CAP). This was laid down in the EEB’s Ten Green Tests which are set out for every new presidency at the beginning of their term. Further issues that were identified were: a new EU Mercury Strategy, the implementation of the biodiversity strategy, fighting climate change, GMO cultivation and improving public health.

Belgium handed over the EU Presidency to Hungary on 31 December 2010. The Belgian Presidency gained praise in the European Environmental Bureau’s (EEB) Ten Green Tests for its push towards a 7th Environmental Action Programme as well as work on biodiversity and several initiatives to bring nanotechnology on the EU agenda. Action with regard to finance and climate change was less favorably judged. In particular, failure to set in motion a decision for the EU to move from a 20% to 30% emission reduction target was regretted.

Council calls for 7th Environment Action Programme, Commission not so sure

The EU27 ministers called for a 7th Environmental Action Programme (EAP) to take over the 6th programme which started in 2002 and will expire at the end of 2012. The Commission is however more apprehensive and preferred, at least, to await a detailed assessment of the 6th programme before taking a stance on the matter. The assessment of the EAP6 is according to the Environment Council nevertheless already an opportunity to examine the challenges that lie ahead, especially in regards to improving environmental policy instruments. The EU27 also concluded that EAP7 should aim toward a better integration of environmental issues across the board of the different EU policies.

The ministers of the EU27 Council Meeting calledfor a European strategy for sustainable materials management. The conclusions were adopted unanimously in Brussels on 20-12-2010. They will serve as a helpful guide for the Commission which is drawing up its own strategy expected sometime this year. Sustainable materials management and has been a focus point of the departing Belgium Presidency.

On 27 January 2011, the EU Commission started a formal infringement procedure against Sweden stating concerns about whether Swedish wolf policy is in line with EU Environment legislation and the Habitats Directive (92/43/EEC) in particular. It concerns a license for the culling of 20 wolfs, a number decided on by the Swedish Environmental Protection Agency to comply with a parliamentary decision that the wolf population should be no more than 210 animals. The Commission has doubts however about the legality of the ‘arbitrary’ ceiling of 210. The European Hunting Federation (FACE) opposed the Commission’s proceedings and stated that Sweden can authorize limited and strictly controlled hunting under the Habitats Directive.

A proposal by the EU Commission allowing member states to restrict or ban the cultivation of genetically modified (GM) crops on 13 July 2010 has sparked debates between the EU institutions. A legal opinion issued by the Council on 17 November 2010 questioned the proposed legal basis (Art. 114TFEU) as well as the grounds on which national restrictive measures may be imposed (environmental protection and safety reasons would not be valid grounds under the proposal). The compatibility with international trade law was also questioned. The legal service of the European Parliament too voiced concerns over the proposed measure. The Commission however strongly disagreed with the opinion taken by the Council and insisted that the measures were in conformity with EU law.

Incidentally, the Commission proposal may even result in an increase of GM cultivation as member States who always took a strong stance against GM crop farming might be more inclined to accept the introduction of new GM crops when they are able to ban cultivation on their own territory.

EP calls on Commission to maintain deadline set for ban on battery cages

On 16 December 2010 the European Parliament (EP) called on the EU Commission to maintain the requirement for a ban on battery cages by 1 January 2012, as laid down in the Welfare of Laying Hens Directive (1999/74/EC). The EP further strongly opposed attempts by Member States to secure a deferral of that deadline and stressed that “as a matter of principle, postponement of the ban or derogations from it would seriously harm the welfare of laying hens”. The substantial numbers of Member States and egg producers behind schedule for meeting the 2012 deadline caused the MEPs deep concern and the Commission was asked to provide clarity concerning the state of play in the Member States by 1 March 2011 and, by 31 December 2011, to submit a list of egg and egg-product producers or processors and retailers not complying with the provisions of Directive 1999/74/EC.

Natura 2000 has increased protection for an area of 28,000 km² throughout Europe through the addition of 739 new sites. The sites are mainly in France, Spain, Denmark, the Czech Republic and Poland. 17,500 km² of the newly protected areas consist of seas and oceans.

The Environment Council of 20th of December 2010 concluded that the UN conference on biodiversity in Nagoya had a “successful outcome” and invited the Commission and the Member States to quickly sign the Nagoya Protocol and to prepare for its ratification. The protocol relates to access to genetic resources and the fair and equitable sharing of benefits arising from their utilization.

In a Resolution adopted on Thursday the 20th of January 2011, the European Parliament called for a ban on heavy fuel oils ships in the Arctic to prevent serious environmental impacts in the event of accidents. The ban would be similar to a ban that will enter into force in August in the Antarctic.

On 31 January 2011 the EU Commission issued a policy paper wherein it called on Member States to boost cooperation and coordination of renewable energy support schemes. However, the Commission did not propose harmonization of renewable energy subsidies rejecting calls to that effect made by power sector association Eurelectric. The commission mentioned further that annual renewable energy investments must double (to €70bn) in order to meet the target set for 2020. This will necessarily entail a substantial use of national support schemes and other financial instruments according to the Commission.

PlasticsEurope, a European trade association, has written to the EU Commission to express their view that Italy breaches EU law by a ban on non-biodegradable plastic shopping bags which came into force on the first of January 2011. According to PlasticsEurope there is a violation of the free movement clause (Article 18) of Directive 94/62 on packaging and packaging waste. It is also claimed that contrary to EU obligations, no notification to the Commission took place.

Meanwhile, in the Netherlands supermarkets voluntarily agreed to stop providing free plastic bags in the course of 2011.

Shortly, the first universal mobile phone charger working with any model or brand will be available for sale on the market. European standardization bodies CEN-CENELEC and ETSI published in December 2010 a standard for the mobile phone charger which is expected to significantly reduce the amount of waste electrical and electronic equipment (WEEE). Sales are expected to begin the first half of 2011.

On 4 January 2011, the European Wind and Energy Association (EWEA) published an analysis of the 27 National Renewable Energy Action Plans which were submitted by the Member States to the Commission. It concluded that the EU will meet its target of 20% of its gross final energy consumption from renewable energy sources by 2020. Justin Wilkes, Policy Director of EWEA said that 20.7 % of the EU 27 energy consumption will be from renewables and that “25 of the 27 EU countries intend to either exceed or meet their target”

The European commission sent Hungary a letter requesting it to re-classify the alkaline red mud which caused the Hungarian environmental disaster in October 2010. The red mud, now classified as non-dangerous, should according to the Commission be re-classified when the operating permit is reviewed. The Commission takes the view that it should be classified as a dangerous substance considering the composition of the waste that escaped the aluminium plant in Ajka. So said Joe Hennon, spokesman for Environment Commissioner Janez Potoènik, on 13-01-2011, alluding also to the Integrated Pollution Prevention and Control Directive 96/61/EC.

The European Commission agreed on a wide-ranging air quality policy. However, there will be no immediate review of Directive 2001/81/EC (National Emission Ceilings Directive), said Environment Commissioner Janez Potocnik following a policy debate on EU air quality legislation on the 18th of January 2011. A comprehensive policy was agreed upon and, although review of the National Emission Ceilings Directive had long been planned, this would “not bring the synergies possible with other political measures in train or under consideration”. The emission ceilings for 2010 were actually designed to be interim targets, as WHO standards require further emission cutbacks in order to protect human health and the environment.

In a press release published on the 19th of January 2011, the European Environment Bureau (EEB) expressed deep disappointment over the Commission’s lack of clarity regarding the NEC Directive and regretted that other policy areas such as transport, energy and farming, were prioritized without explaining how, without setting new targets, these fields could really improve air quality.

Another three more years are needed according the Commission before more stringent air emission limits should come into effect which are taken up in Directive 2000/25/EC on the application of emission stages to narrow track tractors (tractors less than 1.15 meters wide). The Commission’s call for postponement regards a measure that would normally apply from January 2011.

The European Commission announced on 19 February 2011 that it suspended for at least one week transactions in all EU ETS registries, except for allocation and surrender of allowances. The measure is “transitional” in nature and taken in view of recurring security breaches in national registries over the last two months. Several supposed thefts occurred in countries that had not yet implemented last year’s EU ETS registry rules. The Commission prompted Member States to speedily implement the security measures.

The European Commission approved on the 24th of January an expansion of the Emission Trading Scheme (ETS) within the UK, allowing for nitrous oxide emissions from nitric acid production to be included. Only one main company, GrowHow which is a fertilizer manufacturers, is currently affected by the expansion. From 2013 onwards nitrous oxide from the production of nitric, adipic or glyocalic acid will become mandatory.

The outcome of the Cancun climate conference was welcomed by the 20 December 2010 EU27 Environment Council. The agreement reached makes it possible for immediate action to be taken they and creates the basis for a comprehensive post-Kyoto agreement. However, it was emphasized that it is imperative to reach a binding and comprehensive agreement in this year’s climate conference in Durban and that a clear energy strategy was required in preparation for the event.

Through consultations started by the Treasury and the Department of Energy and Climate Change in December 2010 the British government commenced a process that is to result in fundamental reforms to their electricity market. These reforms are aimed to meet climate goals for the United Kingdom and provide for a secure, affordable supply of electricity in the long term. Four connected policy instruments are proposed. Renewable Obligation Certificates (ROCs) for low carbon generators will be replaced with a long term guaranteed unit price for their output, a feed-in tariff (TIF), if wholesale prices are below the TIF, the money will be raised through tariffs levies on customer; if it falls above however, the extra income will be paid back to the customers. Additionally, the carbon price under the EU’s ETS will be propped up and there will be long-term capacity payments in return for ensuring sufficient power plants as well as an emissions performance standard for any new fossil fuel power station, setting a maximum allowed amount of carbon dioxide per unit of electricity generated.

Despite calls from several Member States to end a prohibition on the pesticide 1,3-dichloropropene(also known as telone), the EU Commission adopted a decision that will maintain the ban on this substance.

The EFTA Surveillance Authority is searching for an Officer in Environmental Law who will be assigned responsibility for general surveillance work (case handling) relating to the EEA EFTA States in the field of the environmental law, in particular climate change policies, and related issues; e.g. dangerous substances and chemicals.

ERA is currently looking for experts in European Environmental Law. Applications are invited from senior lawyers for a position as head of section and from junior lawyers for a position as course director.